FCC Should Make ISPs Play Copyright Cop, Says NBC

Not even a week after AT&T announced plans to adopt undefined technical measures to stop "piracy," NBC Universal has asked [PDF] the FCC to declare that "broadband service providers have an obligation to use readily available means" (emphasis added) to stop copyright infringement. On the unintentionally funny-and-scary scale of one to ten, this is easily an 11.

The comments were submitted as part of the FCC's Notice of Inquiry about broadband policy. Most of the debate in this inquiry has focused around imposing "network neutrality" rules and limiting ISPs' ability to break the Internet as an open platform for innovation by discriminating against particular content and application providers.

Remarkably, NBC's not just asking for an exception in any neutrality regime to let ISPs block unlawful uses. And it's not even asking for a loophole that would, for instance, let ISPs block or degrade a disruptive innovator like YouTube that has both unlawful and lawful uses. Instead, NBC is asking for mandatory discrimination.

In turn, NBC is essentially asking for the FCC to make copyright policy. The DMCA safe harbors clearly protect ISPs from liability for copyright infringement engaged in by users, subject to certain narrow limitations and without any obligation to monitor their networks for infringement.

Subverting Congress' copyright policy would be inappropriate but not unheard of for the FCC. That's exactly what it did -- and what the courts smacked down -- in the broadcast flag fight. Let's hope the FCC simply disregards this outlandish, hail mary request from the content industry.

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